August 29, 2012

The Chinese Bar Exam and the “Turn Against Law”

In recent years, Chinese central authorities have turned against a range of legal
reforms that they had pursued in the late 20th century – a
professional judiciary, resolving administrative and civil disputes through court
trials, and so on. (For more on this, see
here.)

These reflect
deeper shifts in political winds blowing from the top of the system. Starting in 2006, Party authorities launched “Socialist
Rule of Law” political campaigns re-emphasizing Party supremacy and warning
against the infiltration of “Western” rule-of-law concepts. These new ideological efforts have become a
regular feature within Chinese courts and other legal institutions, reflected
in new materials for judges to review in internal political study sessions.

Changed
state attitudes have shown up in another venue as well – namely, the national
judicial examination (sifa kaoshi).

The
national judicial examination is required for all new lawyers, judges, or
procuratorate officials. When
implemented in 2002, the test was widely regarded as a step forward in terms of
creating unified standards for Chinese legal professionals and in increasing
their educational qualifications (since a university degree is required to sit
for the exam). Early exams were
relatively apolitical, broadly testing applicants on Chinese law, including
civil, commercial, and criminal law, legal history, and professional
responsibility. (1) However, starting in 2007, Chinese authorities amended the
content of the exam to include Socialist Rule Of Law as a major field on which
applicants would be tested.

What
differences has this introduced? Well, compare the 2003 and 2010 exams. The
general format has remained unchanged (three sets of multiple choice questions
followed by essays). But unlike the 2003
test, the political content is quite clear in the 2010 version (as it is in the
2011 exam as well). The first five
multiple-choice questions are very direct. (Did you remember the need to firmly
uphold the people’s democratic dictatorship?).
Further, the first essay question requires the applicant to discuss
their understanding of socialist rule–of-law, in light of a 2009 speech by the
head of the Party’s Political-Legal Committee on the Party’s need to maintain
social control and stability.

Of
course, this needs to be placed in perspective.
Less than 5% of the 2010 test is explicitly political in nature. Just as in 2003, the 2010 exam primarily revolves
around whether students remember principles drawn from contract law or criminal
procedure or international law.
Moreover, it is unlikely that the exam itself has any lasting impact on
most students. Just as with their
counterparts abroad, most Chinese law students simply memorize and regurgitate
whatever content (whether Party doctrine or the Rule Against Perpetuities) is
required to pass the exam.

On the
other hand, there is a difference.
This is not the same exam as in the early 2000s. The new political
material sends a visible signal, both by its inclusion and by its placement in
the front of each section, as to new official priorities.

(1) This is not to
say that the 2003 exam was completely
free of political content. Two or three
of the multiple-choice questions in the first section might be construed as
loaded. Try the following one.

81. Which of the following statements are not
required under law? [Choose as many as applicable.]

A) All
citizens have equal capacity to enjoy civil rights.

B)
In civil activities, the
principles of voluntariness, fairness, providing compensation for equal value,
honesty, and credibility shall be observed.

C)
Parties to a contract shall
fulfill their obligations pursuant to the terms of the contract.

D)
The [Communist] Party must
operate within the boundaries of the constitution and law.

The
answer? A, B, and D are not required under law.
Only C is. (The first two statements are from the constitution and
general principles of civil law, respectively, while D is taken from the Party
charter – none of which is legally binding.)

Comments

The Chinese Bar Exam and the “Turn Against Law”

In recent years, Chinese central authorities have turned against a range of legal
reforms that they had pursued in the late 20th century – a
professional judiciary, resolving administrative and civil disputes through court
trials, and so on. (For more on this, see
here.)

These reflect
deeper shifts in political winds blowing from the top of the system. Starting in 2006, Party authorities launched “Socialist
Rule of Law” political campaigns re-emphasizing Party supremacy and warning
against the infiltration of “Western” rule-of-law concepts. These new ideological efforts have become a
regular feature within Chinese courts and other legal institutions, reflected
in new materials for judges to review in internal political study sessions.

Changed
state attitudes have shown up in another venue as well – namely, the national
judicial examination (sifa kaoshi).